Time for Your Business’ Annual FMLA Compliance Checkup

Under the Family and Medical Leave Act of 1993 (FMLA), employers with 50 or more employees within 75 miles of the work site are required to provide eligible employees up to 12 work weeks of unpaid leave during any 12-month period for the birth or adoption of a child, the care of a parent, spouse or child with a serious health condition, or to receive care for the employee's own serious health condition. Under certain conditions, an employee may use the 12 weeks of FMLA leave intermittently, as well.

Aetna recommends that your business conduct an annual FMLA compliance checkup to help ensure that your business is complying with applicable federal and state laws and reduce potential litigation risks.

We have compiled this short informational checklist to help get your business started:

Your employee benefits handbook should include a description of your company’s FMLA policy
Review your FMLA policy to make sure it contains the required elements. This includes specific designations of any policy options available under the regulations, such as designation of the 12-month period, consideration of paid leave as part of FMLA leave, provisions regarding use of vacation time during FMLA leave, etc.

FMLA requires an employer that is covered under the law to publish its FMLA policy in its employee benefits handbook. Furthermore, your company must include the elements of your FMLA policy in your company’s handbook. You should not rely on references to the policy outside the handbook, attach or staple supplemental FMLA policies to the handbook, or rely on any other method of communicating your policy to your employees.

Your business should have a clear, consistent process for handling leaves
Designating a single contact to handle FMLA requests will help to make sure that leave requests are handled in a consistent way.

Document, document, document leave requests
FMLA requires covered employers to make, keep and preserve records pertaining to their obligations under FMLA in accordance with the record-keeping requirements of section 11(c) of the Fair Labor Standards Act (FLSA) and in accordance with FMLA regulations.

You can substitute paid leave (for example, PTO) for FMLA leave requests
The law permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. If paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.

Require medical certifications
You can require medical certifications from your employees who want to take FMLA leave for either their own or a family member’s serious health condition. If you want a second opinion, you may require it; however, your company must also pay for it.

Only health benefits need to be maintained during an FMLA leave
Other benefits, including cash payments chosen by the employee instead of group health insurance coverage, need not be maintained during periods of unpaid FMLA leave. Certain types of earned benefits, such as seniority or paid leave, do not need to accrue during periods of unpaid FMLA leave as long as such benefits do not accrue for employees on other types of unpaid leave. For other benefits, such as elected life insurance coverage, the employer and the employee may make arrangements to continue benefits during periods of unpaid FMLA leave. An employer may elect to continue such benefits to help ensure that the employee will be eligible to be restored to the same benefits upon returning to work. At the end of the leave, the employer may recover only the employee's share of premiums it paid to maintain other "non-health" benefits during unpaid FMLA leave.

FMLA notification process – be aware of notification timing requirements

• 30-day advance notice of the need to take FMLA leave when the need is foreseeable;
• notice "as soon as practicable" when the need to take FMLA leave is not foreseeable ("as soon as practicable" generally means at least verbal notice to the employer within one or two business days of learning of the need to take FMLA leave);
• sufficient information for the employer to understand that the employee needs leave for FMLA-qualifying reasons (the employee does not need to mention FMLA when requesting leave to meet this requirement, but just explain why the leave is needed); and,
• if the employer was not made aware that an employee was absent for FMLA reasons and the employee wants the leave counted as FMLA leave, timely notice (generally within two business days of returning to work) that leave was taken for an FMLA-qualifying reason.

Although job restoration is required, there are some exceptions

• FMLA requires an employer to restore an employee who has been on FMLA leave to his/her prior position or an equivalent one. If the employee would have been terminated regardless of being on leave (for example, in a reduction in force), job restoration is not required.
• Additionally under limited circumstances where restoration to employment will cause "substantial and grievous economic injury" to its operations, an employer may refuse to reinstate certain highly paid, salaried "key" employees. In order to do so, the employer must notify the employee in writing of his/her status as a "key" employee (as defined by FMLA), the reasons for denying job restoration, and provide the employee a reasonable opportunity to return to work after so notifying the employee.

Did you know that Workers’ comp and disability leave can run concurrently with FMLA?
FMLA leave and workers' compensation leave or a disability leave can run at the same time, provided the reason for the absence is  a qualifying serious illness or injury and your company properly notifies the employee in writing that the leave will be counted as FMLA leave.

Intermittent leaves – employees need to work with you, the employer to not disrupt business
Employees needing intermittent/reduced schedule leave for foreseeable medical treatment must work with their employers to schedule the leave so as not to unduly disrupt the employer's operations, subject to the approval of the employee's health care provider. In such cases, you, as the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave better than the employee's regular job.

The cost of noncompliance in administering FMLA programs is growing. Some recent legal judgments against employers  have been in excess of $1 million. (July 2006 HR Alert - http://www.phelpsdunbar.com/pages/pub_newsletters/Hra07_06.pdf) In addition, evaluating your FMLA process may help you determine opportunities for cost and administrative savings. Take a look at the attached Absence Management calculator to help you to calculate the potential savings opportunities available to you and your company. http://www.aetna.com/group/leave_management_calc/ 

This short list is certainly not all encompassing and is not a substitute for legal advice but it should help you assess your company’s FMLA compliance and cost structure.  

To find out more about how Aetna’s Absence Management Services can help your company, please contact us.

To read more on keeping your company FMLA compliant, visit the Department of Labor’s FMLA Compliance Guide:  http://www.dol.gov/whd/fmla/